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Sure, TPP Is 'Win-Win'... Unless You Care About Human Rights

#TheDiplomat

Sure, TPP Is 'Win-Win'... Unless You Care About Human Rights

The Trans-Pacific Partnership won’t do much to improve the human rights situation in Asia.

By John Sifton
May 12, 2015

To hear the Obama Administration tell it, the Trans-Pacific Partnership, or TPP, is a win-win and cure-all. It will create jobs in the U.S., improve labor and environmental protections, improve business transparency internationally, and help consummate a relationship with Asia that has until now been mostly an overture, the administration says.

Many U.S. lawmakers, however, are unconvinced. The administration needs “fast track” authority to finish negotiating the TPP, and a key vote is likely to come up in the Senate this week. Opposition to the deal is bubbling up across Washington’s political and ideological spectra. In a twist, the opposition is meta-partisan. The Republican leadership of the Senate, and most of the party, support fast track, but the Democratic leadership opposes it. Both parties have members who disagree on the deal.

The TPP’s partners will include oppressive undemocratic countries like Vietnam and Brunei, and other countries with problematic human rights records like Malaysia, Singapore, and Mexico. Lawmakers who focus on religious freedom may be alarmed at how Vietnam locks up leaders of unsanctioned churches. Advocates for lesbian, gay, bisexual, and transgender (LGBT) rights are horrified at anti-LGBT laws in Malaysia and Brunei.

And just about everyone is alarmed at pledges made by the Sultan of Brunei to operationalize a form of Sharia (Islamic law) that would mandate whipping homosexuals and stoning to death persons engaging in sexual activity out of wedlock.

Meanwhile, health and human rights advocates are concerned at proposed provisions on patent protections that would extend pharmaceutical companies’ profits at the expense of public health efforts to improve the availability of generic versions of life-saving drugs.

Other groups are worried about the agreement’s provisions on investor dispute resolution, which allow corporations to sue governments for damages when they enact or enforce health, safety or environmental laws or policies that impact corporate profits. Mechanisms of this type have been used, for instance, by a tobacco company to sue Australia for passing anti-smoking legislation, and by a metal smelting company to sue Peru after its government took action to force the company to clean up massive pollution it had caused.

In the face of this evidence, the Obama administration nonetheless maintains the agreement is top notch. The TPP, the administration says, will obligate countries like Vietnam to improve respect for human and labor rights. The agreement’s labor chapter, it says, will contain standards requiring countries to protect workers’ rights, end government control over unions in countries, and defend workers’ rights to organize. The provisions on investor disputes will prevent the kinds of problematic cases that have occurred in the past.

There is no way to know what is actually in the agreement, however, because negotiated text is secret. The administration has only shared texts with congressional members and staff with security clearances.

To the administration’s credit, the U.S. Trade Representative (USTR) has worked to improve key parts of the agreement, like the labor chapter, and the administration has attempted to use the negotiations overall as leverage to compel countries to improve their records. From statements by the USTR and information provided by those who have seen the agreement, it seems that the labor chapter now provides that TPP members have to adopt core labor standards, including the right to form unions.

The problem, however, is that little of this will have real-world impact. Administration officials, and President Obama himself, repeat the word “enforceable” almost every time they talk about the TPP’s labor provisions. The truth, however, is that the TPP’s labor chapter is not enforceable in practice. And the administration’s broader efforts to use the agreement to leverage improvements in human rights records—in problem countries like Vietnam, Malaysia, and Brunei—have largely been ineffective.

The situation with Vietnam puts the issues in sharpest relief. The United States has been pressing Vietnam for almost four years to improve its human rights record and labor rights record in particular, using not only the TPP but closer military ties as the leverage. All that the United States has received in response is a few pledges, baby steps, and a handful of political prisoner releases. (If one can call the releases that: One released prisoner was in poor health and died within weeks of his release, two others were only paroled into exile in the United States.)

The Vietnamese government still uses its penal code, which contains provisions criminalizing free speech and freedom of association, to lock up dissidents and critics. More than 150 have been convicted over the last four years, in the same period in which the US was negotiating with Vietnam on the TPP.

Meanwhile, Vietnam’s labor rights record remains abysmal. Independent unions outside the umbrella of the government-controlled Vietnam General Confederation of Labor are forbidden and the act of trying to organize one is punished as a crime against the state. Labor activists such as Nguyen Hoang Quoc Hung and Doan Huy Chuong remain behind bars. And tens of thousands in administrative detention for alleged drug use are forced to work for nothing, or near to nothing. The fact that this forced labor program of supposed “drug treatment” is operated by Vietnam’s labor ministry tells you everything you need to know.

The administration insists that the TPP’s labor chapter will compel Vietnam to improve its labor record, because Hanoi will need to change its laws to allow independent unions—factory-level unions, incidentally, not sectoral unions or federations.

But with neither a functioning and objective labor dispute system, nor an independent judiciary, it is difficult to imagine how these paper reforms would come to reality.

Worse, without additional reforms to the other problematic parts of the legal system, Vietnamese labor organizers will still be vulnerable to prosecution under penal code provisions that criminalize supposed anti-party or anti-government activities—which in the government’s view has included handing out pamphlets or having park picnics at which participants read the UN Universal Declaration of Human Rights.

The administration contends that the labor chapter is enforceable, but it’s not evident how. Should the TPP come into effect and Vietnam is still crushing workers’ rights, what will be the remedy? That non-existent unions will use non-existent labor dispute mechanisms to bring worker complaints before Vietnam’s non-existent independent judiciary?

At best, international or U.S. labor rights groups may be able to petition the United States to file a complaint against Vietnam in a trade tribunal, but this would only get to abuses in general, not specific complaints.

What’s lacking in the agreement is specific mechanisms to enforce commitments that governments make on labor rights. Why would Vietnam be compelled to do anything more, once it receives the benefits of TPP membership? The better course of action would be to negotiate an agreement where key benefits are withheld if Vietnam or other countries fail to meet their commitments.

The Obama administration needs to be more realistic in describing what can be accomplished by the TPP. It’s already bad enough to forego human rights protections for the sake of free trade. It’s even worse to attempt to sell the agreement by invoking supposed rights protections when they don’t exist.

The Obama administration needs to press harder on TPP members to improve their rights records—for real. The United States shouldn’t move ahead with the TPP until it can demonstrate more serious commitments to creating truly enforceable provisions on labor rights protections and better addressing human rights concerns generally. In the meantime, Congress should focus more closely at the specifics of the deal and exercise strong oversight. There is no need to rush, and with flaws this big, the stakes are too high.